EXHIBIT 10.22
SI/VAI Agreement
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_______________________________________________________
1996 SYSTEMS INTEGRATOR/VALUE ADDED INTEGRATOR AGREEMENT
SONY BUSINESS AND PROFESSIONAL PRODUCTS GROUP
SONY ELECTRONICS INC.
ARTICLE I PARTIES TO THIS AGREEMENT
This Agreement is entered into and is effective as of the first day of
April, 1996 ("Effective Date") by and between:
Sony Business & Dental Medical Diagnostic
Professional Products Group and DBA:
Sony Electronics Inc. 000 X Xxxxxxxx Xxxxxxx
0 Xxxxxxx Xxxxx Xxxxx 000
Xxxxxxxx, XX 00000-0000 Xxxxxxxx Xxxxxxx, XX 00000
(hereinafter referred to as (hereinafter referred to as
the "Division") the "Buyer")
ARTICLE II PREMISES OF THIS AGREEMENT
WHEREAS, the Division is engaged in the sale and distribution (or, in the case
of software, license) of various kinds of electronics products and accessories;
and,
WHEREAS, the Buyer desires to purchase and/or license certain of such products
and accessories as parts of systems manufactured and/or assembled by the Buyer
for resale.
NOW, THEREFORE, by reason of the foregoing premises, and in consideration of the
mutual covenants set forth in this Agreement, the parties agree as follows:
ARTICLE III TERM AND DEFINITIONS
(A) TERM: This Agreement shall commence as of the Effective Date and expire on
March 31, 1998 (the "Term") unless earlier terminated in accordance with Section
11.0.
(B) PRODUCTS: The term "Product(s)" refer(s) to those products, accessories and
software of the Division which the Buyer is authorized to purchase and resell
(or, in the case of software, license) in a System (as defined in (d) below)
described in the Product and Market Schedule attached to this Agreement and made
a part hereof.
(C) PRODUCT MARKET SCHEDULE: The term "Product and Market Schedule" refers to
the Schedule attached to this Agreement and made a part hereof which identifies
those Products which the Buyer is authorized to purchase and resell (or, in the
case of software, license), and contains terms and conditions regarding those
Products which may be in addition to or different from the General Terms and
Conditions set forth in Article IV.
(D) SYSTEMS: The term "System(s)" shall mean those integrated systems generally
described in the Product and Market Schedule attached to this Agreement and made
a part hereof, that are manufactured and/or assembled by the Buyer and contain
the Products or that add significant value to the Products by the Buyer's
combination of same with products or accessories manufactured and/or assembled
by or for the Buyer for resale or lease.
(E) GENERAL DEFINITIONS:
The term "Customer(s)" refer(s) to those third parties to whom the Buyer is
authorized to resell Products in the Systems pursuant to the Customer definition
set forth in the Product and Market Schedule.
The term "Sale" or "Resale" (in any tense or form) whenever used in this
Agreement shall mean license in the case of software Products. The term "Resale"
(in any tense or form) shall also mean lease.
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ARTICLE IV GENERAL TERMS AND CONDITIONS
SECTION 1.0 SCOPE OF THIS AGREEMENT
1.1 GENERAL: The Division agrees to sell, and the Buyer agrees to purchase,
the Products from the Division for the Buyer's incorporation thereof into the
Systems for resale to Customers as part of the Systems upon the terms and
conditions set forth in this Agreement.
1.2 LIMITATIONS: The Buyer acknowledges that its right to resell the
Products under this Agreement is non-exclusive, and that the Division reserves
the right to sell and distribute any of its products to any customers in the
world, and to appoint any third party to do so, without giving the Buyer notice
thereof and without incurring any liability to the Buyer therefor.
1.3 STATUS AS INDEPENDENT CONTRACTOR: The relationship established between
the Division and the Buyer by this Agreement is that of a vendor to its vendee
and nothing herein contained shall be deemed to establish or otherwise create a
relationship of principal and agent between the Division and the Buyer. The
Buyer represents that it is an independent contractor who will not be deemed an
agent of the Division for any purpose whatsoever and neither the Buyer nor any
of its agents or employees will have any right or authority to assume or create
any obligation of any kind, whether express or implied, on behalf of the
Division. This Agreement is not a franchise agreement and does not create a
franchise relationship between the parties and if any provision of this
Agreement is deemed to create a franchise between the parties, then this
Agreement will be deemed null and void and will automatically terminate as if
such provision had been deemed unenforceable by a court as provided in Section
13.7.
SECTION 2.0 ACCESS AND AUDIT
In order to verify the Buyer's compliance with this Agreement, the Buyer shall
give the Division reasonable access to the Buyer's facilities during normal
business hours to make inspections of the Buyer's premises and to audit the
books and records of the Buyer relating to the Products purchased by the Buyer,
including the right to make copies of or abstracts from such books and records.
SECTION 3.0 SALE OF THE PRODUCTS
3.1 TERMS: The Division shall sell the Products to the Buyer upon the terms
and conditions set forth in this Agreement.
3.2 PRICES: The Division shall sell the Products to the Buyer at the prices
and/or fees set forth on the Products and Market Schedule attached to the
Agreement and made a part hereof subject to adjustment as provided for in
Section 3.3. The Division may increase the price of the Products by giving the
Buyer notice and such new pricing will apply to all of the Buyer's orders
received by the Division after the effective date set forth in such notice. The
Buyer may terminate this Agreement by giving the Division notice within thirty
(30) days after the issuance of any such price increase to the extent of any
orders not yet shipped by the Division.
3.3 PRICE ADJUSTMENTS: If the prices at which the Products are sold
hereunder represent a price which has been reduced based on a representation by
the Buyer that the Buyer would make certain volume purchases, and the Buyer
fails to make purchases in the volumes represented, the Division may in its sole
discretion adjust prices to the otherwise prevailing prices for the number of
items actually purchased, and the Buyer will pay the Division the difference
promptly upon receipt of the Division's invoice therefor. If the Buyer resells
any of the Products to any party other than the Customers or to any party on a
stand-alone basis (i.e., not within a System or as an addition to or
substitution in an existing system sold by the Buyer) the Buyer shall pay the
Division an adjustment charge equal to the difference between the price charged
the Buyer for such Products and the then-current single lot list price of the
Division for such Products.
3.4 ALLOCATIONS: The Division may, in its sole discretion, allocate its
inventory of the Products.
3.5 DISCONTINUATION/CHANGES TO PRODUCTS: The Division may, in its sole
discretion, discontinue the sale of any of the Products and any
parts/accessories thereto (except where continued availability is required by
law) and make such changes affecting their form, fit or function as it, in its
sole discretion, determines, by giving the Buyer prior notice thereof but
without incurring any liability to the Buyer therefor. If, because of any
discontinuance or change to the Products affecting their form, fit or function,
the Buyer does not wish to purchase same or any of the other Products covered by
this Agreement, then the Buyer may terminate this Agreement or cancel any order
not then previously fulfilled by giving the Division notice thereof within ten
(10) days of the Division's notice to it.
3.6 TAXES: The Buyer shall bear the cost of any taxes (exclusive of taxes
based on Sony Electronics Inc.'s. net income), levies, duties and fees of any
kind, nature or description whatsoever applicable to any of the Products
supplied by the Division to the Buyer. The Buyer will pay the Division all such
sums upon demand unless the Buyer provides the Division, at the time of the
submission of its purchase orders, tax exemption certificates or licenses
acceptable to the appropriate taxing authorities.
3.7 SOFTWARE OWNERSHIP: The Buyer acknowledges that the Division or, in
applicable instances, the Buyer's licensors, retains the entire right, title and
interest to the intellectual property (including, without limitation, all
copyrights) related to any item of software and related documentation which the
Division provides to the Buyer. The Division shall permit the Buyer to use such
software and documentation internally or to distribute such software and
documentation to the Customers for the Products, and the Buyer will use such
software and documentation or distribute such software and documentation only to
the Customers on such terms and conditions as the Division may, from time to
time, impose. The Buyer shall not itself, or permit others to, decompile,
disassemble, reverse engineer or otherwise attempt to derive to source code of
any such software, and the Buyer shall not itself, or permit others to, remove,
obscure, or alter any copyright, trade secret, trademark, patent or other
proprietary rights notice affixed to or displayed on any such software or
documentation or affixed to or printed on any of its factory packaging. Nothing
contained herein shall; (a) prohibit the Buyer from setting a price to its
Customers for software and documentation where copies of the software and
documentation are licensed to the Buyer as one of the Products; or (b) allow the
Buyer to make copies of the software or documentation.
SECTION 4.0 THE SYSTEMS
4.1 GENERAL: The Buyer certifies that it shall not resell the Products to
any third party on a stand alone basis and shall only resell the Products as an
integrated part of the System or as an addition to or substitution in an
existing System sold by the Buyer. The Buyer further certifies that except for a
minimal number of development and/or demonstration Systems for its own use, all
Systems will be resold in the regular course of its business, and that the Buyer
will
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resell the Systems only to unaffiliated Customers and not to any third party
having an equity interest in the Buyer.
4.2 SPECIFIC USES: (a) General: The Buyer shall not sell the systems
for use in medical life support or aircraft instrumentation. (b) Medical Systems
Products: If the Buyer's System is sold for any medical purpose or application,
the Buyer will, at its own cost and expense, obtain and maintain all approvals
and permits required by the United States Food, Drug and Cosmetic Act of 1938,
as then in effect or thereafter amended, and will not resell any of the Products
in any way that will make them be adulterated or misbranded within the meaning
of that Act or be an article which may not be introduced into interstate
commerce pursuant to the requirements of Sections 404, 515, 510, 513, or 515
thereof, or be in violation of any similar law of any other jurisdiction having
authority over the manufacture, processing and distribution of same.
4.3 TRADEMARKS: The Buyer acknowledges the validity of the Division's trade
names and trademarks and that it shall have no right to or interest in any trade
names or trademarks owned, used or claimed now or in the future by Sony
Electronics Inc., Sony Corporation of America, Sony Corporation (Japan) or the
subsidiary or affiliate companies of said corporations.
SECTION 5.0 SHIPMENTS
5.1 SHIPMENTS: The Buyer shall bear all costs and expenses incident to the
Division's shipment of the Products to it, except in the case of any shipment
which qualifies for prepaid freight under the Division's program then in effect.
The Division shall select the method of shipment and the carrier. The Division
will ship the Products only to locations in the continental United States,
including Alaska.
5.2 TITLE AND RISK OF LOSS: Subject to Article IV, Section 3.7 above, title
to all of the Products sold by the Division to the Buyer shall pass upon the
Division's delivery thereof to the carrier. Risk of loss or damage to any of the
Products in transit without regard to whether the Division paid the shipping
charges therefor or whether any third party is designated as consignee thereof,
is the Buyer's, whose responsibility it will be to file claims with the carrier.
5.3 TIME OF DELIVERY: Delivery dates set forth in any Buyer order or other
purchasing documents, or any confirmation thereof by the Division, shall be
deemed to be estimated only and subject to the Division's then current lead
times for the Products. The Buyer will not be excused from payment of any
amounts it owes to the Division or from the performance of any of its other
obligations under the terms and conditions hereof as a result of, and the
Division will not be liable to the Buyer for damages resulting from, the
Division's failure to meet any of those dates. However, if the Division's delay
in shipment or delivery of any ordered Products exceeds by ninety (90) days such
first estimated date, then either party may cancel any Buyer order or part
thereof not previously fulfilled by giving the other notice thereof and without
incurring any liability to the other therefor.
5.4 SEPARATE TRANSACTION: Each Buyer order for the Products under this
Agreement shall be deemed a separate transaction and each shipment of the
Products by the Division will constitute a separate sale, obligating the Buyer
to pay therefor, whether such shipment be in whole or only in partial
fulfillment of such order.
5.5 STOP SHIPMENTS: The Division may, in its sole discretion, cancel any
Buyer orders previously accepted by the Division or delay the delivery of any of
the Products covered thereby if the Buyer defaults in any of its obligations
under this Agreement or if the Division reasonably believes that the Buyer may
do so for or with respect to any past or pending Buyer order.
SECTION 6.0 CREDIT; PAYMENT AND INDEBTEDNESS
6.1 MAINTENANCE OF CREDIT LINE: The Buyer shall maintain a credit line
sufficient to support its purchases of the Products and to pay any indebtedness
to the Division when due. The Division may, in its sole discretion, either
generally or with respect to any specific Buyer order, vary, change or limit the
amount or duration of credit allowed to the Buyer. The Buyer will make available
to the Division such statements of its financial condition as the Division may,
from time to time, reasonably request.
6.2 PAYMENT TERM: Unless otherwise provided in the Product and Market
Schedule, payment terms are net sixty (60) days from the date of the Division's
invoice; invoices are issued only on the date of shipment.
6.3 UNAUTHORIZED DEDUCTIONS: The Buyer shall not make deductions of any kind
from any monies it owes to the Division unless the Buyer has received an
official credit memorandum from the Division authorizing such deduction.
6.4 DEFAULT; ACCELERATION OF OBLIGATIONS AND CHARGE FOR LATE PAYMENT: The
Buyer's payment for the Products shall be considered past due if it is not
received by the Division by the due date shown on the Division's invoice. If any
payment is past due, then in addition to any other remedy available to the
Division under this Agreement or at law therefor, the Division may declare, by
giving the Buyer notice thereof, that: (a) all of the liabilities and
obligations of the Buyer to the Division, whether then due or not, to be
immediately due unless the past due payment is received by the time specified in
the notice; and/or, (b) impose a monthly finance charge on all amounts past due
or declared due by (a) above equal to the lesser of one and one half percent
(1-1/2%) or the maximum allowed by law and charge the Reseller for the
Division's reasonable expenses of collection therefor, including but not limited
to, attorneys' and experts' fees and court costs.
SECTION 7.0 PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT
7.1 CLAIMS OF DIRECT INFRINGEMENT: Subject to the terms and conditions of
this Section 7.0, the Division warrants to the Buyer that, to the best of the
Division's knowledge, the Products when and as manufactured and sold by the
Division to the Buyer shall be free of any rightful third party claim of direct
infringement of any United States patent, trademark or copyright by the Products
per se.
7.2 INDEMNIFICATION BY THE DIVISION: The Division shall, at its own cost and
expense, defend any claim or suit alleging direct patent trademark or copyright
infringement instituted against the Buyer (and/or its officers, directors,
employees and agents) and indemnify the Buyer against any award of damages and
costs for direct infringement made against the Buyer (and/or its officers,
directors, employees and agents) by a court of last resort, insofar as such
award of damages is based on a final determination that the Products as and when
furnished by the Division to the Buyer under this Agreement directly infringed
any patent, trademark or copyright of the United States. Indemnification of
costs hereunder will extend only to actual costs assessed. This indemnity will
not apply to the Products made by or for, or modified by or for, the Division in
accordance with the Buyer's specifications or requests.
7.3 CONDITIONS UNDER WHICH INDEMNIFICATION APPLIES: The Division's
obligation under Section 72 shall be conditioned on the following: (a) the Buyer
gives the Division prompt notice of such claim or suit, but in no event later
than twenty (20) days after its receipt of such a claim or ten (10) days after
the Buyer is served with such suit; (b) the Division, in its sole discretion, is
given sole control of the defense of any such claim or suit and all negotiations
for its settlement or compromise; (c) the Buyer fully cooperates with the
Division in the defense and all related settlement negotiations; and, (d) if the
Products become, or in the Division's opinion are likely to become, the subject
of such a claim or suit, then the Buyer permits the Division, at the Division's
own cost and expense but in its sole discretion: (1) to procure for the Buyer
the right to continue using the affected Products; (2) to replace or to modify
the affected Products so that they become non-infringing; or, (3) to remove the
affected Products and refund to the Buyer the purchase price the Buyer paid
therefor.
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7.4 EXCLUSIONS: Notwithstanding the terms and conditions of Sections 7.1,
7.2 and 7.3, the Division shall have no liability to the Buyer if any such
claim or suit is based upon or arises out of: (a) alterations of the Products by
the Buyer or any third party, (b) failure of the Buyer to use updated Products
provided by the Division for avoiding such infringement; (c) use of the Products
in combination with apparatus or software not furnished by the Division except
for those expressly approved in writing by the Division; (d) processes or
methods allegedly performed by the Products; (e) use of the Products in the
manner for which the same were neither designed nor contemplated; or, (f) a
patent trademark or copyright in which the Buyer or an affiliate or subsidiary
of the Buyer has a direct or indirect interest by license or otherwise.
7.5 DISCLAIMER OF WARRANTY AGAINST INFRINGEMENT: The warranty set forth in
Section 7.1 is in lieu of all other warranties, express or implied, with regard
to any claim of infringement by the products. The Division hereby disclaims and
excludes all warranties against infringement concerning the products that may be
provided in Section 2-312(3) of the Uniform Commercial Code and/or in any other
comparable state statute.
7.6 LIMITATION OF LIABILITY FOR INFRINGEMENT CLAIMS: The terms and
conditions of this Section and Section 10.0 state the entire liability of the
Division to the Buyer for any claim arising from or based upon, patent,
trademark or copyright infringement respecting the Products.
7.7 INDEMNIFICATION BY THE BUYER: The Buyer shall, at its own cost and
expense, defend, indemnify and hold harmless the Division (and/or its officers,
directors, employees and agents) in the same manner and to the same extent
described in Section 7.2 from any claim or suit against the Division (and/or its
officers, directors, employees and agents) in which the alleged direct patent,
trademark or copyright infringement arises from: (a) any of the Products made by
or for, or modified by or for, the Division in accordance with the Buyer's
specifications or requests; (b) alteration of the Products by the Buyer; or, (c)
from the combination of the Products with equipment, software or products not
furnished by the Division.
SECTION 8.0 INSPECTIONS; RETURNS; LIMITED WARRANTIES
8.1 INSPECTIONS: Within twenty (20) days of the Buyer's receipt of any of
the Products under this Agreement the Buyer shall inspect same and furnish the
Division with any claim it may have for shortages, incorrect materials,
invoicing mistakes, or defects in material, workmanship or failure to meet
specifications. The Buyer's failure to make such a claim within that period will
be deemed to constitute the Buyer's acceptance of the Products and leave the
Buyer with only those warranty-related remedies otherwise provided in Section
8.2. In the case of any claim involving shortages or invoicing errors, the
Division will, upon confirmation of the claim, promptly furnish the Buyer with a
credit memorandum. In the case of any claim involving incorrect materials,
defects in material or workmanship or failure to meet specifications, the Buyer
must return the affected Products to the Division and the Division will, upon
confirmation of the claim, promptly furnish the Buyer with a credit memorandum
for the Products returned and, subject to availability, ship the Buyer
replacement Products with an invoice therefor.
8.2 LIMITED WARRANTY: The Division's warranty for the Products shall be as
set forth in the Product and Market Schedule.
8.3 COMPATIBILITY: The Division hereby disclaims and excludes any
representations or warranties that the products are compatible with any
combination of products not furnished by the Division which the Buyer or any end
user may choose to connect to the product except for those expressly approved in
writing by the Division.
8.4 REPAIRS AND REPLACEMENTS: The Division shall not be required to install,
de-install, and/or remove any of the Products from or into the Buyer's or the
Customer's or any end users facilities, product(s), or system(s) for the purpose
of repair or replacement. No repair or replacement by the Division of any
Product or part thereof shall extend the warranty period as to the entire
Product. The specific warranty on the repaired part only shall be in effect for
a period of ninety (90) days following the repair or replacement of that part or
for the unexpired portion of the Limited Warranty provided in Section 8.2 above,
whichever is longer.
8.5 WARRANTIES TO CUSTOMERS OR END USERS: The Buyer shall make no warranties
or representations on behalf of the Division to the Customers, any end users or
to the trade with respect to any of the Products. The Buyer will provide its own
warranty for the System and be responsible for any such warranty which the Buyer
extends or allows to be extended, whether express or implied, to the Customers,
any end users, or other third parties. The Buyer shall at all times comply with
applicable federal and state laws relating to the delivery of warranties to
consumers.
8.6 RESPONSIBILITY FOR REMOVAL OF DATA: The Buyer shall remove any data,
software or programs or keep backup copies thereof prior to returning any of the
Products to the Division for repair or other reason. The Division will not be
liable for the loss of data contained in any returned Product.
SECTION 9.0 INDEMNITY BY THE BUYER
THE BUYER SHALL INDEMNIFY AND HOLD HARMLESS THE DIVISION, SONY ELECTRONICS INC.,
ITS PARENT COMPANY, SONY CORPORATION OF AMERICA, AND THE SUBSIDIARY AND
AFFILIATED COMPANIES OF EACH AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND
EMPLOYEES FROM AND AGAINST ANY CLAIMS, SUITS, LIABILITIES, LOSSES, FINES,
PENALTIES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' AND EXPERTS'
FEES AND COSTS) ARISING FROM OR INCIDENT TO THE BUYER'S BREACH OF ITS
OBLIGATIONS OR RESPONSIBILITIES UNDER SECTIONS 1.3, 4.2 OR 8.5 HEREOF.
SECTION 10.0 LIMITATION ON LIABILITY
EXCEPT FOR THE BUYER'S RIGHT TO INDEMNIFICATION UNDER SECTION 7.0, THE LIABILITY
OF THE DIVISION, IF ANY, AND THE BUYER'S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES
FOR ANY CLAIM OF ANY KIND WHATSOEVER WITH RESPECT TO ANY BUYER ORDER FOR THE
PRODUCTS OR WITH RESPECT TO ANY OF THE PRODUCTS COVERED THEREBY, AND REGARDLESS
OF THE LEGAL THEORY OR THE DELIVERY OR NON-DELIVERY OF THE PRODUCTS, SHALL NOT
BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE PRODUCTS WITH RESPECT TO WHICH
SUCH CLAIM IS MADE. UNDER NO CIRCUMSTANCES WILL THE DIVISION BE LIABLE TO THE
BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES ON
ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS
OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF
BUSINESS REPUTATION OR GOODWILL, FOR LOSS OF DATA, COST OF SUBSTITUTE PRODUCTS,
COST OF CAPITAL, AND THE CLAIMS OF ANY THIRD PARTY, OR FOR ANY OTHER REASON
WHATSOEVER.
SECTION 11.0 TERMINATION
11.1 TERMINATION FOR CAUSE: The Division may immediately terminate this
Agreement by giving the Buyer notice if the Buyer:
(a) defaults in the payment of any monies it owes to the Division when due
and such default continues for a period of ten (10) days after the
Division gives the Buyer notice thereof; or,
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(b) defaults in the performance of any of its obligations under any of the
terms or conditions of this Agreement other than as provided in subsection
(a) above, which default is not remedied by the Buyer to the Division's
satisfaction within thirty (30) days after the Division gives the Buyer
notice thereof or,
(c) defaults in the performance of any of its obligations under the terms and
conditions of this Agreement, which default by its nature, cannot be
remedied by the Buyer; or,
(d) engages directly or indirectly in any attempt to defraud the Division; or,
(e) issues any press release, advertising, brochure or other release of
information to any of the Customers, the trade or the general public
concerning or in any way referring to this Agreement or any other
agreement or relationship with the Division and/or Sony Electronics Inc.
without the prior written approval of this Division, which approval or
rejection shall be given in the Division's sole discretion; or,
(f) is unable to pay any and/or all of its debts as they become due or becomes
insolvent or ceases to pay any and/or all of its debts as they mature in
the ordinary course of business, or makes an assignment for the benefit of
its creditors; or,
(g) is liquidated or dissolved or if any proceedings are commenced by, for or
against it under any bankruptcy, insolvency, reorganization of debts or
debtors relief law, or law providing for the appointment of a receiver or
trustee in bankruptcy.
The Division may also immediately terminate this Agreement by notice: 1)
pursuant to Section 11.3; or 2) upon the occurrence of, or the Buyer's failure
to give notice of, any of the events referenced in Section 12.1 (a) - (c).
11.2 REMEDIES FOR BREACH: If the Buyer defaults in its obligations under the
terms and conditions of this Agreement, then the Division may, in addition to
any other remedy available to it hereunder or at law therefor, suspend or cease
further shipments of the Products to the Buyer for a period of time specified in
a notice to the Buyer.
11.3 SET-OFF: If the Buyer defaults with respect to this Agreement or any
other agreement(s) with the Division or any other division of Sony Electronics
Inc. including, but not limited to, the Buyer's failure to pay any monies when
due either pursuant to this Agreement or any other such agreement, then the
Division may, in its sole discretion, set off against any monies due and owing
the Buyer such sum or sums of money due and owing from the Buyer to the Division
and/or Sony Electronics Inc. pursuant to this Agreement or such other
agreements, and/or to terminate this Agreement.
11.4 EFFECT ON OTHER AGREEMENTS: Upon the termination of this Agreement,
Sony Electronics Inc. may, in its sole discretion, upon notice to the Buyer,
immediately terminate any other agreements which may then be in effect between
the Division and/or Sony Electronics Inc. and the Buyer. Such right of
termination shall be in addition to and, to the extent necessary, supersede any
right of termination which may be provided for in such other agreements.
11.5 SURVIVING OBLIGATIONS AND LIMITATIONS: Neither the termination nor
expiration of this Agreement nor the termination of any of the agreements
referred to in this Section shall release either party from the obligation to
pay any monies that may be owing to the other party or operate to discharge any
liability that had been incurred by either party prior to any such termination
or expiration.
11.6 ORDER PROCEDURE AFTER NOTICE OF TERMINATION: During the period between
the Division giving the Buyer notice of this Agreement's termination and the
effective date of such termination, all Buyer orders not then fulfilled and all
new Buyer orders for the Products that are accepted by the Division will be
shipped to the Buyer only on a cash in advance basis.
SECTION 12.0 NOTICES
12.1 CHANGE IN STATUS: The Buyer shall give the Division immediate notice in
writing of: (a) any transaction affecting the ownership of ten percent (10%) or
more of the Buyer's capital stock, or any significant portion of the Buyer's
assets, if the Buyer is a corporation; or, (b) any change in the respective
interests of the partners, if the Buyer is a partnership; or, (c) any
transaction affecting the ownership of any part of the business, if the Buyer is
an individual proprietorship.
12.2 CHANGE IN NAME OR ADDRESS OF THE BUYER: The Buyer shall give the
Division immediate notice in writing of any change in the: (a) name of the
Buyer; or, (b) address of the Buyer's principal office from that first set forth
above.
12.3 METHOD OF TRANSMISSION: Any notices given under this Agreement shall be
in writing and will be deemed to have been sufficiently given when delivered by
hand or sent by facsimile transmission (which is acknowledged by the recipient),
overnight courier service or by certified or registered mail, postage and other
charges prepaid, to the parties at the addresses first above written or as
subsequently changed by notice duly given. The date of mailing or other
transmission of any written notice will be deemed the date on which such notice
is given unless otherwise specified in the notice.
SECTION 13.0 GENERAL
13.1 EXPORT: The Buyer shall not export the Products covered by this
Agreement in violation of U.S. export laws and regulations. The Buyer will be
solely responsible for compliance with and the obtaining of any required export
licenses.
13.2 ASSIGNMENT: The Buyer shall not assign or otherwise transfer this
Agreement or any interest or right hereunder or delegate the performance of any
of its obligations hereunder to any third party without the prior written
consent of the Division, which consent may be withheld in the Division's sole
discretion. Any such attempted assignment, transfer or delegation without the
prior written consent of the Division, will be deemed null and void and result
in the immediate termination of this Agreement without necessity of any notice.
13.3 WAIVERS: Waiver by either party of any default, or either party's
failure to enforce any of the terms and conditions of this Agreement shall not
in any way affect, limit or waive such party's right thereafter to enforce and
compel strict performance of every term and condition hereof.
13.4 NON-EXCLUSIVENESS; REMEDIES: Any specific right or remedy provided
in this Agreement shall not be exclusive but will be cumulative of all other
rights and remedies set forth herein and allowed at law.
13.5 LITIGATION: In the event of any litigation between the parties with
respect to this Agreement, the prevailing party (the party entitled to recover
costs of suit at such time as all appeals have been exhausted or the time for
taking such appeals has expired) shall be entitled to recover reasonable
attorneys' and experts' fees, and costs in addition to such other relief as the
court may award.
13.6 HEADINGS: The headings of Articles and Sections in this Agreement are
for convenience and reference only, and they shall in no way define, limit, or
describe the scope of the provisions or be considered in the interpretation,
construction or enforcement hereof.
13.7 INVALIDITY: If and to the extent that any term or condition of this
Agreement is specifically determined by any court to be in whole or in part
invalid or unenforceable, then this Agreement shall be immediately terminated
upon such determination. However, such termination will not operate to discharge
either party from the
SI/VAI Agreement
Page 6 of 8
obligation to pay the other party any sum due such other party or discharge any
liability that had been incurred prior thereto.
13.8 SURVIVAL: Article IV Sections 1.2, 1.3, 3.3, 3.6, 4.1, 4.2, 4.3, 6.3,
6.4, 7.0, 8.0, 9.0, 10.0, 11.3, 11.4, 11.5, 12.3, 13.1, 13.2, 13.3, 13.4, 13.5,
13.7, 13.8, 14.0, 15.0 and 16.0 as well as any term or condition in the Product
and Market Schedule where such survival is indicated or intended by the terms of
such provision, shall survive the termination or expiration of this Agreement.
13.9 GOVERNMENT CONTRACTS: No provision required in any United States
government contract or subcontract related thereto shall be deemed a part of
this Agreement, or be imposed upon or binding upon the Division, and this
Agreement will not be deemed an acceptance of any government provisions that may
be included or referred to in any Buyer order or other purchasing document.
SECTION 14.0 FORCE MAJEURE
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DELAY IN THE PERFORMANCE OF
ANY OF ITS OBLIGATIONS HEREUNDER DUE TO ANY CAUSE BEYOND SUCH PARTY'S REASONABLE
CONTROL OR DUE TO ACTS OF GOD, ACTS OF CIVIL OR MILITARY AUTHORITIES, FIRES,
LABOR DISTURBANCES, FLOODS, EPIDEMICS, GOVERNMENTAL RULES OR REGULATIONS, WAR,
RIOT, DELAYS IN TRANSPORTATION OR SHORTAGES IN RAW MATERIALS OR OTHER PRODUCTS.
THIS SECTION SHALL NOT RELIEVE OR RELEASE EITHER PARTY FROM ITS OBLIGATION TO
MAKE PAYMENT WHEN DUE OF ANY MONIES WHICH EITHER PARTY MAY OWE TO THE OTHER.
SECTION 15.0 GOVERNING LAW AND VENUE
THIS AGREEMENT SHALL BE INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LOCAL LAW OF THE STATE OF NEW JERSEY. THE PARTIES HEREBY CONSENT TO AND
SUBMIT TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE STATE
OF NEW JERSEY, AND ANY ACTION OR SUIT HEREUNDER WILL ONLY BE BROUGHT BY THE
PARTIES IN THE FEDERAL OR STATE COURT WITH APPROPRIATE JURISDICTION OVER THE
SUBJECT MATTER ESTABLISHED OR SITTING IN THAT STATE. THE PARTIES SHALL NOT RAISE
IN CONNECTION THEREWITH, AND HEREBY WAIVE ANY DEFENSES BASED UPON THE VENUE, THE
INCONVENIENCE OF THE FORUM, THE LACK OF PERSONAL JURISDICTION, THE SUFFICIENCY
OF SERVICE OF PROCESS OR THE LIKE IN ANY SUCH ACTION OR SUIT BROUGHT IN THE
STATE OF NEW JERSEY.
SECTION 16.0 WAIVER OF TRIAL BY JURY
IN THE EVENT OF ANY LITIGATION BETWEEN THE PARTIES RELATING TO OR ARISING IN ANY
WAY OUT OF THIS AGREEMENT, THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHT TO
TRIAL BY JURY.
ARTICLE V PRODUCT MARKET SCHEDULE
THIS SPACE IS INTENTIONALLY LEFT BLANK
SI/VAI Agreement
page 7 of 8
THIS SPACE INTENTIONALLY LEFT BLANK.
SI/VAI Agreement
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ARTICLE VI INCORPORATION/ENTIRETY OF AGREEMENT
This Agreement supersedes, terminates and otherwise renders null and void any
and all prior written and/or oral agreements between the Buyer and the Division
with respect to the matters herein expressly set forth, except that nothing
herein contained shall be construed as intended to relieve or release either
party from its obligation to make payment of any monies which either party may
owe to the other party. This Agreement represents and incorporates the entire
understanding of the parties hereto with respect to the matters herein expressly
set forth and each party acknowledges that there are no warranties,
representations, covenants or understandings of any kind, nature or description
whatsoever made by either party to the other, except as are herein expressly set
forth. This Agreement may be modified only by a written instrument signed by the
parties to this Agreement, which instrument makes specific reference to this
Agreement and the changes to be made hereto.
The Buyer hereby warrants and represents that the individual executing this
Agreement is duly authorized and empowered to bind the Buyer. This Agreement
shall be subject to acceptance by the Division through its execution in the
space provided below by an authorized representative only.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first above written.
Dental Medical Diagnostic SONY BUSINESS AND PROFESSIONAL
------------------------------------- PRODUCTS GROUP
(Name of Buyer) A DIVISION OF
SONY ELECTRONICS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxx
---------------------------------- --------------------------------
(Authorized Signature) (Authorized Signature)
Print Name: Xxxxxx X. Xxxxxxxxx Print Name: Xxxxxx Xxxxx
------------------------- ------------------------
Title: CEO/Chairman of the Board Title: Director of Sales
------------------------------ -----------------------------
Date of Acceptance: March 20, 1996
-----------------
EXECUTION OF THIS AGREEMENT: If the Buyer is a corporation, indicate the office
of the person signing the Agreement on behalf of the corporation. If the Buyer
is a partnership, the same should be signed by a general partner, who should so
indicate by use of the word "General Partner". If the Buyer is an individual
proprietorship, the same should be indicated by use of the title "Sole
Proprietor."
Dental Medical Diagnostic SI Schedule
Xxxxxxxx Xxxxxxx, XX 00000 Page 1 of 2
________________________________________________________
ARTICLE V PRODUCT MARKET SCHEDULE
FOR
MEDICAL SYSTEMS PRODUCTS
SYSTEMS INTEGRATORS
1. SYSTEM PRODUCTS
PRODUCT DESCRIPTION
--------------------------------------------------------------------------------
MEDICAL SYSTEMS PRODUCTS as identified in the Division's current Medical Systems
Price List for Systems Integrators
The prices for the above Products are the Systems Integrator prices for same as
set forth in the Division's then current Price List for said Products. All
pricing is subject to increase and/or adjustment in accordance with Sections 3.2
and 3.3 of this Agreement and is F.O.B. at the Division's warehouse.
2. U.S.F.D. & C. ACT COMPLIANCE: Unless the Division gives the Buyer
notice or has otherwise labeled same, any of the Products listed above which are
included within the Division's Medical Systems Products Price List will comply
with the applicable provisions of the United States Federal Food, Drug &
Cosmetics Act of 1938, as then in effect. If the Buyer is uncertain as to which
Products are included in the Division's Medical Systems Products Price List, the
Buyer shall contact the Division to obtain a current copy of such List.
3. ACCESS AND AUDIT: In addition to Article IV, Section 2.0 of this
Agreement the Reseller shall maintain a record of all sales of the Medical
Systems Products, and keep same for a period of two (2) years following the
expiration or termination hereof. During the term of this Agreement and for such
additional period, the Buyer shall make this record available, upon reasonable
notice, to the Division.
4. DESCRIPTION OF THE SYSTEM: (Attach separate sheet if necessary)
In addition, and notwithstanding anything contained in the definition of the
Systems set forth in Article III, Section (d). the other components of the
System must significantly exceed in value the Products incorporated therein;
such other components must be manufactured by the Buyer or by other to
specifications provided by the Buyer; and, the System itself must be sold to end
users, bearing the Buyer's name or logo and be advertised as the Buyer's System.
Dental Medical Diagnostic SI Schedule
Xxxxxxxx Xxxxxxx, XX 00000 Page 2 of 2
5. WARRANTY
A. BUYER'S SYSTEM AND DIVISION'S LIMITED WARRANTY: If the Buyer's
System requires either modification of the Products and/or their
incorporation into the Buyer's System to such an extent that the
Products are not readily visible to the end-user and/or are not
easily disconnected or removed by the end-user, then the Buyer will
not deliver to the Customers the Sony Limited Warranty Card enclosed
with or accompanying the Product. The Division's warranty to the
Buyer shall be as set forth in the Division's Limited Warranty Card
enclosed with or accompanying the Products. If any Products are not
accompanied by warranty cards, the Division's then current warranty
applicable to those Products will apply.
B. PRODUCT MODIFICATION: If the Buyer modifies the Products, then the
limited warranty provided in 4.A above will be void and the Buyer
shall remove and retain or destroy the Division's Limited Warranty
Card accompanying the Products and remove the Sony trademarks from
such Products as well as all labels containing the serial number,
model number and FCC, DHHS and U.L. Registration and Certification
stickers.
C. PROOF OF PURCHASE: The Buyer's dated invoice must be retained as
evidence of the date of purchase and to establish warranty
eligibility.
D. DISCLAIMER OF WARRANTY: EXCEPT FOR THE FOREGOING WARRANTIES, THE
DIVISION HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND/OR ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE DIVISION HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTY THAT
THE PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF NON-SONY
PRODUCTS THE BUYER MAY CHOOSE TO CONNECT TO THE PRODUCTS.
6. CUSTOMERS: Buyer may resell the Products in the Systems to all
classes of unaffiliated purchasers. If applicable, the Customer may be further
described by the following Market Segment:
Bona fide end users in the medical field or bona fide buying groups
purchasing the Products for or on behalf of their members who are
themselves such bona fide end users.
7. MINIMUM PURCHASE REQUIREMENT (MPR): The Buyer's MPR for the
Medical Systems Products is $40,000 per year of Medical Systems Products.
8. ADVERTISING: The Buyer shall only advertise the Product as part of a
System and shall not advertise the Products as stand-alone models.
